A recent report from ex-offender charity NACRO reveals a widespread trend among UK businesses to dismiss or reject an applicant due to a criminal conviction. Is the employer’s decision to exclude ex-offenders from certain jobs determined in the best interests of the business or because the recruiter holds strong personal views about the crime? Where does this duty of care end? Sarah Fletcher asked HR Zone members for recruitment best practice and when such discrimination is justified.

Is HR prejudiced?

According to HR Zone members, a criminal record is not an automatic barrier to employment but the offence remains relevant when recruiting. A fraud conviction will disqualify the candidate from an accountancy role, just as a bouncer should not have a record of GBH. Asked if rejection on these grounds is justified, HR Director of North West Employers Association David Campbell says “The short answer is yes – in certain circumstances. You should consider the nature of the crime and the potential impact on the role to be undertaken.” As the conviction is treated as significant, the employer obviously believes re-offending is possible. However, Rosemarie Loft, HR Director of SMBC, makes the interesting point that in the case of fraud, typically the risk lies elsewhere: “Most offences carried out at work that involve fraud or theft are carried out by first time offenders with no history.”

Does this attitude to ex-offenders reveal an unreasonable prejudice towards them? HR Director of West London YMCA Janet Simkins explains that although a business can benefit from employing individuals with a criminal record, this carries certain conditions: “The only absolute bars to employment are drug offences, life sentences and paedophilia. The others are taken on a case by case basis. We have very successfully employed people with convictions who have made a sound contribution to the work of the YMCA.” Battersea Dogs’ Home also works with ex-offenders through a work experience programme with the Home Office, yet animal cruelty is an immediate ban to work. Is this a case of once guilty, always guilty?

Simkins points out, however, that hiring someone with a history of drug use or child abuse is an irresponsible risk: “Because we work with young people who are recovering addicts and have children on our premises, either living with us or as part of our hugely popular children’s activity classes programme, over 2,000 children enter our premises and we want them to be safe. Life sentences for violent crimes would really be a bar in practice; again because of housing the vulnerable, we can’t put them at risk.” Indeed, even NACRO makes a distinction between crimes involving children and others: its report, Getting Disclosures Right: A review of the use and misuse of criminal record disclosures, criticises UK organisations for discriminating against individuals who have been convicted for crimes that don’t involve children or other vulnerable groups.

CRBs and background checks

The recent report by headhunter Hitchenor Wakeford revealing that employers are increasingly running internet searches on applicants to discover background details raises an ethical issue of just what an organisation is entitled to know. Loft says, “If someone’s background has no bearing on the job itself, it should not be taken into consideration. Some employers do believe that they have the right to know everything about an employee, and they make too many assumptions.” The Rehabilitation of Offenders Act 1974 allows relatively minor offences for which the sentence was two and a half years’ imprisonment or less to be ‘spent’, so the candidate does not have to disclose this information unless applying for a role such as a teacher or as part of the Emergency Services. Employment law specialist Louise Birkett notes: “As far as the more serious cases are concerned, their convictions can never become spent so they must disclose them. If they do not and they are found out, then they could be dismissed because it would be a breach of the mutual trust that should exist between employer and employee.”

In the case of positions which don’t involve children or other at-risk groups, is it ethical to run background checks? NACRO has accused employers of misusing CRB checks, and certainly their use is rapidly growing: according to the Society for Human Resource Management, eight years ago 51 per cent of UK organisations conducted them; now 80 percent do. Although HR Manager Berengere Toscano says that such checks “are not ethical and not necessary”, Glen Rodgers-Heap, Head of Group HR at Verna Group Holdings Ltd, argues: “Background knowledge is essential when interviewing any candidate, as our past helps to form us into who and what we are, as well as developing our skills, experiences and attitudes. It is all relevant.” Peter Cox, HR Director of Fasthosts Internet, agrees: “We are all responsible for our actions and in reviewing a CV I want to get as broad a view as possible. To that extent a criminal conviction is a fact of someone’s past as is getting poor (or good) academic qualifications. Thus I don’t see this as discrimination, though clearly it would be something that I’d expect a candidate to volunteer an explanation for – and again, depending on the offence, it should not stay as a blemish on their past forever.”

In fact, Cox says revealing a past conviction could actually improve a candidate’s chances of employment: “If a person can explain, show, regret or have changed as a result of the conviction, then this in itself may be an illustration of strength of character. For example, any of us could be involved in a car accident which leads to a death, for which we may be convicted for manslaughter. If this happened to me, I would be far more bothered by the death than the conviction. I am sure that this is true of most people.” Loft agrees: “If someone has disclosed in their application that they have served a sentence, then they deserve to be heard. It does show a certain amount of openness about it.”

What’s the answer?

Of course, without official checks, disclosure relies upon trust which, as Whale points out, carries risks: “Aren’t some of these axe murderers shown to have been charming people before they start wielding the axe? Personality and attitude should matter more than background but you still need to be sure.” This expresses the general attitude held by HR Zone members: although many believe individuals with a criminal past deserve a second chance, certain precautions are required to insure against the impact of re-offending. This is also conditional upon the nature of the crime, yet for relatively minor offences HR professionals encourage assessment on a case by case basis. As Janet Simkins puts it, “I think both qualifications and the criminal record need to be weighed in evidence. The whole point is that recruitment cannot take place in a vacuum. It is for the panel to decide what weight they give to a candidate who demonstrates skills abilities and the right attitude with a conviction. What is key is well-trained panels and clear, consistent guidelines.”